Judge Delays Prop. 187 Ruling for a Month : Immigration: She indicates part of initiative may not pass legal muster and asks state to file further arguments on its behalf.

A federal judge Thursday delayed until at least late October a widely awaited ruling on the constitutionality of Proposition 187.

In issuing a one-page order seeking further legal arguments from the state, U.S. District Judge Mariana Pfaelzer gave indications that she has tentatively determined that at least a portion of the popular immigration initiative does not pass legal muster.

The Los Angeles-based judge asked state attorneys to file a brief explaining specifically why they believe some sections could be deemed constitutional if other parts are not.

“It will not be considered sufficient to state that Proposition 187 is ‘largely severable,’ ” wrote Pfaelzer, who in December issued a preliminary injunction temporarily blocking most sections of the ballot measure.

Pfalezer on Thursday ordered a hearing “solely on the issue” for Oct. 23. In her typed order, the word solely is underlined.

“What can be garnered from this order is that the court tentatively has decided at least one section of the proposition is unconstitutional,” said Stephen Yagman, who has filed one of five anti-Proposition 187 lawsuits before Pfaelzer. “If it turns out that finding one unconstitutional means the others can’t be enforced, the court doesn’t need to look at any particular sections, because they fall like dominoes rather than each being a duck having to be hit with a round of buckshot.”

A spokesman for state Atty. Gen. Dan Lungren conceded that Pfaelzer may be inclined to ax a portion of the initiative. But the spokesman, Matt Ross, emphasized that his office is “pleased with the ruling because it indicates she understood our argument,” that any unconstitutional portions can be severed without having to declare the entire initiative invalid.

“I would say that while there may be portions that she may consider questionable, it does not necessarily mean the whole thing is unconstitutional,” said Ross, pointing to a severability clause in the initiative. “So she’s asking us to argue those points.”

Anti-Proposition 187 lawyers, at a July summary judgment hearing, asked Pfaelzer to declare the entire measure unconstitutional without need for a full-scale trial because it would usurp federal powers.

“That was the way it was drafted, promoted and is to be construed,” said Mark D. Rosenbaum, legal director for the ACLU Foundation of Southern California, an anti-Proposition 187 litigant. “It’s disingenuous now to suggest it can be broken into little pieces.”

In her brief order, Pfaelzer asked lawyers fighting the measure, which won 50%-41% support among state voters last fall, not to file a legal brief on the severability question, saying it is not necessary at this time.

Proposition 187 would ban illegal immigrants from receiving public education, non-emergency health care and social welfare services and would require officials to report suspected illegal immigrants to state and federal authorities. In the only major portion not enjoined by courts, the measure establishes new sanctions for the distribution and use of false citizenship documents.

Pfaelzer indicated Thursday that a full-blown trial on the initiative, which had been scheduled for early September, will not occur without a “further order of the court.”